United States District Court, M.D. Florida, Fort Myers Division
LESLEY HOLMAN, DOMINGO PEREZ TROY and MARIA PEDRO RUPERTO, as plenary guardian of Viviana Pedro, Plaintiffs,
LEE MEMORIAL HEALTH SYSTEM and UNITED STATES OF AMERICA, Defendants.
REPORT AND RECOMMENDATION 
MCCOY UNITED STATES MAGISTRATE JUDGE
before the Court are:
1. Plaintiffs' Motion for Leave to File a Second Amended
Complaint and to Restyle the Case Caption, filed on May 6,
2019 (Doc. 76);
2. Defendant's Response in Opposition to Plaintiffs'
Motion for Leave to File Amended Complaint, filed on May 13,
2019 (Doc. 77);
3. Plaintiffs' Reply to Defendant's Opposition to
Plaintiffs' Motion for Leave to File Second Amended
Complaint (Doc. 81); and
4. Defendant, Lee Memorial Health System n/k/a Lee Health
d/b/a Gulf Coast Medical Center's [sic] Sur-Reply to
Plaintiffs' Reply to Defendant's Response in
Opposition to Plaintiffs' Motion for Leave to File Second
Amended Complaint, filed on June 3, 2019 (Doc. 84).
matters are fully briefed and ripe for the Court's
consideration. In short, Plaintiffs seek leave to file a
Second Amended Complaint that, inter alia, contains
a restyled case caption because: (1) certain named defendants
were dismissed from this case and should be removed from the
case caption; and (2) Plaintiffs wish to include causes of
action for vicarious liability against the remaining hospital
defendant, Lee Memorial Health System n/k/a Lee Health d/b/a
Gulf Coast Medical Center (“Lee Health”), under
theories of actual and apparent agency because of any
negligence attributed to the dismissed defendants. (Doc.
76 at 2). Plaintiffs attached a redacted copy of the
proposed Second Amended Complaint as Exhibit “1”
to the motion sub judice. (See Doc.
76-1). Lee Health opposes any amendment, arguing that
Plaintiffs have not satisfied Fed. Rs. Civ. P. 15 or
16. (Doc. 77).
reasons below, the Undersigned respectfully recommends that
Plaintiffs' Motion for Leave to File a Second Amended
Complaint and to Restyle the Case Caption (Doc. 76)
review of the relevant procedural history of this case is
instructive. This action was initiated on or about February
5, 2018. (Docs. 1, 9-10). Defendant Lee Health filed
its Answer and Affirmative Defenses on March 12, 2018.
(Doc. 15). Plaintiffs filed an Amended Complaint on
May 2, 2018. (Doc. 50). Defendant Lee Health filed
its Answer and Affirmative Defenses to the Amended Complaint
on May 15, 2018. (Doc. 59).
8, 2018, the Court entered a Case Management and Scheduling
Order following a Preliminary Pretrial Conference held before
the Undersigned on the same date. (See Docs.
54-55). The Order established a June 11, 2018 deadline
for filing any motions to add parties or to amend pleadings.
(Doc. 54 at 1). In setting this deadline, the Court
adopted the deadline that the parties jointly proposed in the
Case Management Report they filed with the Court.
(See Doc. 47 at 1). On January 29, 2019,
the Court entered an Amended Case Management and Scheduling
Order resetting certain remaining case-management deadlines
as a result of the federal government shutdown. (Doc.
68). This subsequent Order did not re-set the
then-expired deadline for motions to add parties or to amend
pleadings. (See id.).
March 6, 2019, a Joint Stipulation for Dismissal with
Prejudice as to Defendants Rosalie Pirrone, ARNP, Ricardo
Bornacelli-Vergara, M.D., and Anesthesia & Pain
Consultants of Southwest Florida was filed. (Doc.
69). On March 7, 2019, the presiding trial judge entered
an Order dismissing those named Defendants. (Doc. 70).
on the Amended Case Management and Scheduling Order, all
expert disclosures and reports were exchanged by May 1, 2019,
and the impending deadline for completing all discovery is
October 7, 2019. (Doc. 68 at 1; see also
Doc. 77 at 2 (confirming that “[e]xpert
disclosure [sic] and reports have been exchanged pursuant to
the Amended Case Management and Scheduling Order”)).
filed the instant motion seeking leave to file a Second
Amended Complaint on May 6, 2019 (see Doc.
76), which is nearly eleven (11) months after the June
11, 2018 deadline specified in the original Case Management
and Scheduling Order for filing motions to amend pleadings
(see Doc. 54).
Rule of Civil Procedure 15(a)(2) provides that after a
responsive pleading is served, “a party may amend its
pleading only with the opposing party's written consent
or the court's leave” and “[t]he Court should
freely give leave when justice so requires.” The
decision whether to permit an amendment is within the
Court's sound discretion. Foman v. Davis, 371
U.S. 178, 182 (1962).
“[w]hen a party files a motion for leave to amend a
pleading after the applicable scheduling order
deadline has passed, the party is in effect seeking to modify
this deadline.” Coach Inc. v. Visitors Flea Mkt.,
LLC, 6:11-cv-1905-Orl-19GJK, 2012 WL 12905809,
at *1 (M.D. Fla. June 11, 2012) (emphasis added; citing
Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419
(11th Cir. 1998)). Thus, an untimely motion for leave to
amend a pleading requires an analysis of the good cause and
excusable neglect standards in Fed. Rs. Civ. P. 6(b)(1)(B)
and 16(b)(4). See Fed.R.Civ.P. 6(b)(1)(B)
(“When an act may or must be done within a specified
time, the court may, for good cause, extend the time . . . on
motion made after the time has expired if the party failed to
act because of excusable neglect.”); Fed.R.Civ.P.
16(b)(4) (“A schedule may be modified only for good
cause and with the judge's consent.”); Estate
of Miller v. Thrifty Rent-A-Car Sys., Inc., 609
F.Supp.2d 1235, 1252 (M.D. Fla. 2009) (“[W]hen a party
files a motion for leave to amend a pleading after the
relevant scheduling order deadline has passed, the party must
demonstrate both good cause and excusable neglect for the
untimely motion.” (citing Fed. Rs. Civ. P. 6(b)(1)(B),
16(b)(4))). Only then does the court consider whether
amendment is proper under Fed.R.Civ.P. 15(a). Sosa, 133 F.3d
“good cause standard precludes modification unless the
schedule cannot ‘be met despite the diligence of the
party seeking the extension.'” Id. at
1418. Furthermore, with regard to excusable neglect,
this Court has recognized that “Congress plainly
contemplated that the courts would be permitted, where
appropriate, to accept late filings caused by inadvertence,
mistake, or carelessness, as well as by intervening
circumstances beyond the party's control.”
Estate of Washington v. Carter's Retail, Inc.,
3:10-CV-1136-J-32TEM, 2011 WL 2731291, at *2 (M.D. Fla. July
13, 2011) (quoting Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship,507 U.S. 380, 388 (1993)).
Determining whether a party has established excusable neglect
“is at bottom an equitable one.” Pioneer Inv.
Servs. Co., 507 U.S. at 395. The Supreme Court has
identified four factors courts should consider: “(1)
the danger of prejudice to the other party; (2) the length of
the delay and its potential impact on the ...